But What Does it All Mean Man?: It’s High Time for a Solution, and We’ve Been Staring at it the Whole Time.

I’ve spent the better part of a law school semester explaining how much of a disaster virtually everything related to marijuana reform is shaping up to be. We didn’t have clear terms to discuss the issues. We have lawsuits, state borders, and widespread confusion. Wading through it all has given me quite a few headaches. Based on my last posts, it would seem that the only option for a logical system would be to enact comprehensive federal reform of recreational marijuana.

But what if there’s an easier option? One that might clear this whole mess up? One that might actually happen? I think there is: instead of throwing Band-Aid upon Band-Aid on the problem, let’s fix the system we have now. The best way to do this is to have universal medical marijuana with broad criteria at the state level, coupled with doing everything possible to ensure CARERS passes at the federal level. Remember that CARERS changes federal law to mirror state medical regulations. If a state has a medical scheme, everything covered under that scheme is federally legal.

Other authors on this blog have briefly discussed medical marijuana in California. A recap: it’s broad – almost anyone can get a card, and it’s largely unregulated – the state has no agency that deals with marijuana. California’s system is so broad that it is a stretch to call it medical – a whole industry of doctors has sprouted up to get people cards. As I’ve discussed previously, CARERS would encourage states to shift towards a system like California’s. While there may be some problems for other states if CARERS passes, California is in a prime position to capitalize on it.

In the town of North Bonneville, WA, there is a special kind of dispensary called Cannabis Corner. It’s run by the city. Of all the schemes happening across the United States, this one falls most squarely into the realm of State Participation. State Participation is also the one framework that explicitly invokes federal preemption. Cannabis Corner presents an insurmountable issue – without federal action legalizing recreational marijuana, it’s almost assured that Cannabis Corner will get shut down.

But federal recreational legalization is unlikely. Instead, we have CARERS. While it’s not likely that CARERS will pass, it’s certainly possible that it might.

If instead of rolling its medical marijuana into its recreational, Washington did the opposite, and ended up with an entirely medical scheme that nearly anyone could get a prescription to, what might happen?   If CARERS also passes and Cannabis Corner was a medical establishment, Cannabis Corner would become fully legal on a state and federal level.

This simple act would take one of the most, if not the most, pre-empted regulatory schemes and make it legal, clear, and the state prerogative to enact. There is still the issue of different medical schemes resulting in random and unexpected violations for federal law when crossing a border. This could be a big issue on the East Coast, where you can cross 5 states in a manner of hours. But this post is about California’s future, and that problem has some of the fewest implications in California due to its vast size.

California shouldn’t follow Washington state’s footsteps, folding medical marijuana into recreational. Instead, we should do the opposite. Many say this is a somewhat immoral system because many patients have no real medical need. However, this overbroad nature of this system is also a strength – it legally functions as a medical scheme as far as CARERS is concerned, but is broad enough to function as a recreational system for its users. Understanding why this is a good, and possibly the best, course of action requires looking at the issues implicated in both California’s current medical marijuana scheme and those implicated in a recreational scheme. Once we know what the issues are, we can then explore how CARERS and California medical marijuana would fix them.

The other authors of this blog provide a great sample for what these issues are. First, and frequently foremost: What about the Children. While my colleague Clare McKendry has written extensively on this (and I suggest you read her work), for our purposes two things are important: keeping marijuana out of children’s hands, and not ruining their lives if we do find it in their hands. While access is changed in a medical vs. recreational market, the ability to ruin children’s lives by minor possession is a likely constant in both.

Another big issue implicated by any marijuana reform is the environment. Studies by the California Department of Fish and Wildlife show that the way we are growing marijuana in this quasi-legal medical market is deeply flawed and is destroying the wilderness of Northern California. However, the way marijuana is grown now is not inherently tied to medical marijuana. Instead it’s tied to the crop being federally illegal and needing to be hidden.

These aren’t the only issues – there are a whole host of issues implicated by the fact that marijuana is federally illegal. These include the inability to patent, lack of banking for marijuana industries, and the inability to do federal research. Additionally, there is the issue of flexibility. Right now marijuana law is not static. Instead, it’s ambiguous and subject to significant change on both state and federal level. Any successful reform scheme must pay heed of this and attempt to be future proof.

This isn’t an all-encompassing list. Rather, these are some of the more significant issues relating to marijuana reform. My goal here is to examine some key issues that can be used to demonstrate the positive that could be gained by preserving and improving California’s medical marijuana system, instead of shifting to a recreational system.

With that in mind, let’s take a look at how an improved medical market in California can address all these issues, and what steps would actually be needed to “fix” medical marijuana in California. At the end of this we will be able to see that not only is the medical system a possible way forward, but that fixing it wouldn’t take much time, political capital, or money.

Starting with the kids, as I mentioned, there are two implications: access and destroying kids lives. Let’s talk about access. I have yet to hear a single person say anything to the effect of “Kids should have easy access to marijuana.” I’m not a betting person, but I would put money on that remaining true. Whatever happens, we need to ensure that kids can’t get marijuana easily.

In terms of kids’ lives being ruined, medical vs. recreational doesn’t change the equation much. It is possible that with changing the laws for either, penalties for youth will be reduced. That’s probably a good idea, but its independent from a medical vs. recreational debate.

Compare the access in a recreational vs. medical market. In a recreational market, buyers would go to the store and likely show their ID to be able to buy marijuana. It would be the same as going to 7-11 to buy beer or cigarettes. Like going to 7-11 for beer, kids will use fake IDs, pay someone else to buy for them, etc. While the staff at the local liquor store might be suspect, there is only so much they can do to prevent kids from getting their product. Enforcing these rules also requires outside money – police conducting liquor store stings isn’t cheap.

In a medical market, someone could still give a kid some of his or her marijuana, but if you need a verifiable prescription with your name on it to purchase marijuana at a dispensary, then you logically decrease the possibility of children being able to sneak a purchase. Enforcement here is easier as well – much of the regulation is baked into the process. Doctors must give prescriptions, and in the cost of the payment for the doctor’s visit is the price needed to cover the independent verification system. Furthermore, we already have this system.

Similarly, the environment is an issue that is constant across both recreational and medical markets. If we were growing recreational marijuana in the same way we grow medical marijuana, it would be just as unsustainable and harmful to the environment. One theory about why marijuana is grown in the mountains is that its quasi-legal nature requires it to be grown far from the prying eyes of government. This theory makes sense at a logical level, and while there isn’t good data to support (or deny) it, I think it is safe to say marijuana’s federal illegality is a significant factor in determining where it’s grown. This is equivalent to people putting stills up in the Appalachian mountains during alcohol prohibition.

So what changes with medical? Medical has a chance to become federally legal. Support for CARERS is growing, with even the president signing on. When you remove the illegality, marijuana is a crop – just like corn or almonds. When it is fully legal, a state can take steps to ensure that it is grown properly without worrying about the federal government stepping in and undoing all their work.

For example, the Mendocino County Sheriff had a program to tag legal grows. Growers who were following all the rules would get zip ties with serial numbers on each of their plants, demonstrating that the plant was legal. However, the DEA decided the sheriff couldn’t do that, and raided many of the zip tied farms. In a federally legal medical market, the state would have the freedom to enact programs like this. A medical market lets the state treat marijuana as any other crop, drag it out of the mountains and ensure that it isn’t killing salmon, dogs, and even bears.

Recreational legal marijuana, on the other hand, would still have federal issues. Even post-CARERS, the DEA could still raid fields, and prevent the state from acting to ensure that best agricultural practices are followed. This would require the state to figure out how to regulate the growing of a federally illegal substance. On the other hand, in a federally legal medical market, marijuana grows can be folded into the existing agriculture regulatory market. Just like almonds.

While the environment and the children are two of the biggest issues, there are a plethora of things that are problematic now, but would become nonissues in a better federally legal medical market.

Colorado is having issues ensuring safe banking for its recreational marijuana market. Marijuana industry players are keeping massive sums of cash on hand, and it’s creating a target for robberies. The challenge to patent strains is a huge issue. Because federal research is illegal under the CSA, figuring out how to do anything with evidence-based practices next to impossible.

However, remember that CARERS says that any act legal in the state under its medical marijuana scheme is federally legal in that state. While we don’t know how it would play out, it seems as if this would solve all three of these issues. Patents of medical strains would be just like any other medicine. Research could be conducted with federal grants. Again, we don’t know what limits would be imposed on a state by courts, but it seems like CARERS with our current scheme would put California in a cleaner, easier to regulate system than Colorado.

But that’s not the best part. What if California decides it wants to change something about its medical marijuana market? CARERS lets California do that in a way where it doesn’t have to worry about the preemption implications. Because CARERS is concerned with the text of the state law, if California changes its state law, the federal law effectively changes to match it. This would allow California the freedom to regulate as it sees fit.

Contrast this to Colorado. If Colorado decides it wants to change its recreational law, even under CARERS, it will continue to violate federal law. That means the DEA could come in at any moment and try and shut the whole thing down. However, with this risk comes reward. Colorado is getting a significant amount of tax from its recreational marijuana. In a fully medical market, California will not get the same amount of tax revenue. But, that tax revenue might be a false hope: Colorado’s marijuana price has fallen, with experts expecting the price to continue to fall further. Without that revenue, the biggest boom from a recreational market disappears, but all the risk remains.

In conclusion, the federal winds are blowing in a way that suggests federal medical marijuana might become legal. Furthermore, there is no indication that recreational marijuana will become federally legal.   California is in a prime position to do next to nothing, and reap all the benefits of a federal act allowing states to legalize medical marijuana. Unlike Colorado, California wouldn’t need to change its laws – it could instantly treat marijuana as any other prescription and crop. So for the kids, the salmon, and the bears, we should think about if recreational is really the best way to go. It looks like a broad medical program might be a more sustainable, cleaner, and easier to regulate system.


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